Surrogacy for Gay Couples In Israel?

I recently came across a few stories about a gay male couple seeking access to surrogacy services in Israel.   Itai Pinkus and Yoav Arad were married in Canada.   In February they petitioned the Israeli high court to allow them to use surrogacy in Israel.   It seems that under current law, surrogacy is available, but only to a male/female couple. 

Because surrogacy is already permissible in Israel, the petition by Pinkus and Arad raises a fairly narrow question–is it permissible to limit surrogacy to different sex couples?   The broader questions about the propriety of surrogacy generally aren’t at raised here.   Instead, the most obvious questions raised are those about desirability of father/father families–what I have recently discussed as motherless families.     

In response, the government has suggested that this is a matter better decided by the Knesset (the legislative body) than the courts.    I think I’ve touched on this question–who should decide–in the past, but I cannot find quite where.   Generally speaking where an individual couple seeks particular treatment, as is the case here, it’s likely to be presented by the couple as a demand for fair treatment.  As such, it’s often seen (perhaps particularly  in the US) as a proper question for a court.  

If instead you frame the question as one of broad social policy–should surrogacy be allowed, say, or should it only be allowed under particular circumstances–then it looks like a question of general policy.   Those sorts of questions are generally understood to be more appropriately by a legislative body rather than a court.  (I should qualify this by noting that I’m really speaking from my knowledge of the US framework.  I not sure the same is true in Israel, though I suspect it is.)  

Each way of framing the problem is reasonable.   But when, as is often the case here in the US, the legislative body does not act to decide the broad policy question one way or the other, the courts often will step in.   After all, the question of individual fairness remains unresolved, and those sorts of individualized questions are well within the province of the courts. 

I don’t know if the government’s filing suggests that it is ready to propose some general guidelines that would address (one way or another) the gay male couple question.   It’s also possible that suggesting that this is a legislative question is just a way of ducking the harder questions.  

As far as I can tell, nothing further has occurred in Israel.  I’ll try to keep an eye on this case though.   

There are a couple of other points worth noting–one you’ll find if you read down through the Jewish Daily Forward story.   First, for many people whether a child is Jewish depends on the religion of the mother.   In surrogacy, of course, there can be two candidates for mother–the woman who gives birth or the woman with the genetic connection.   It seems it isn’t clear which woman’s identity counts for purposes of determining religion.  

Second, this entire discussion takes place against the backdrop of a globalized fertility industry.  Thus, if they paid enough, the two men could get an egg from a US woman, have it fertilized and then transferred to a surrogate in India.   While Israel might decide that the men are not entitled to access to surrogacy at home, it can hardly close down the international option.   Of course, that will only be available to a small number of wealthy couples.   Were I going to limit access to surrogacy, I wouldn’t do it on that basis.

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17 responses to “Surrogacy for Gay Couples In Israel?

  1. It seems to me that the international option would be far easier to regulate. A government could refuse to allow entry to the child unless there was a formal adoption.

  2. I think that the real issue gets a bit obscured by the fact that this is a gay male couple. One of them plans to sire this child and one of them does not. So the issue is whether a man can hire a surogate to deliver his child for him to raise. His partner won’t be related to the child his partner will be an interchangeable step parent. The man who sires the child would of course have custody of his child and as he moved from relationship to relationship (as heterosexual and homosexual both are known to do) each consecutive partner would be the child’s step parent. I don’t see what the problem is.
    I’m not clear from what you wrote whether the man would fertilize the egg of an anonymous woman (who would be the child’s mother/progenator) and then be implanted into a surogate who just gestates and delivers the child for him. While its a hell of a job, once she’s done she’s completely irrellevant to the child. Of all the artificial reproductive technology, rent-a-womb is the least bothersom. The child would never go seeking her out as its “real mother” the child is not related to her or her family, she does not matter to the child except as a caregiver for 9 months. And she should be paid buckets and buckets of money. Nothing on earth should cost more, in fact I think she should make enough money to be set for life from just one birth.

    • It’s not uncommon for gay male couples using surrogacy to mix the sperm from the two men before IVF is performed. I think they do this to avoid the analysis you engage in here. No one knows which man is genetically related to the child. Their choice to do this reflects a commitment to be equally recognized and acknowledged as parents. (Of course, they or the child could find out easily if there wanted to and sometimes it becomes apparent over time because of physical resemblence.)

      I hadn’t thought about this before (and I think it might be worthy of its own post) but presumably the children raised in these families are familiar with the heritage of both their fathers. While I can imagine some people might have concerns about this, it seems quite different from the situation that disturbs many who have commented here where children do not have access to their genetic forebears. These children have access to two extended families, one of which is composed of genetic forebears. They just do not know which one.

      Also, at least in some places, both men are indeed legal parents, which is to say neither is understood as a step-parent. (I think being a step-parent has to do with timing and order of formation of relationships–if a child/parent relationship exists and then you join in, you are a step-parent. If you are involved from before the child comes into the family (whether by adoption or by birth or whatever) then you are not a step-parent.) Again, maybe this is wothy of discussion in a post as I’ve been pretty cursory here.

      Finally, I disagree about the importance of the surrogate, but that’s another topic. And I do think this is the idea. Egg from woman A (in North America), gestation from woman B (in India).

  3. I suppose the father’s husband could adopt his step-child as a gesture of his desire to remain involved in his step-childs life regardless of what happens to his relationship with his husband.

  4. With regard to adopting a partner’s offspring you said “Yes, this is what happens in some places. Post-adoption the two fathers are on the same legal footing–both legal parents.”

    Adopting the progenitor’s offspring, grants the progenitor’s spouse legal rights and responsibilities for the progenitor’s offspring equal to those of the progenitor. Adoption is the best way for a progenitor’s spouse to secure an ongoing role in the lives of the progenitor’s offspring should the couple divorce or separate. The courts will enforce an adoption decree where one exists. A play for custody by the progenator’s spouse or a play for child support by the progenator would be difficult to take seriously unless the progenator’s spouse had demonstrated intent to assume those responsibilities by taking steps to adopt them.

    You said –
    ” (I think being a step-parent has to do with timing and order of formation of relationships–if a child/parent relationship exists and then you join in, you are a step-parent. If you are involved from before the child comes into the family (whether by adoption or by birth or whatever) then you are not a step-parent.) ”

    Say my husband has an affair (which he has) and that affair produces a child during our marriage (which it hasn’t). The (single) female progenitor would presumably name him on the child’s birth certificate to obtain support (which she should). He would (should) help raise and financially support their offspring. Based on the legal model you describe above saying above my name could go right on that birth certificate with his and I can straight take custody of the child because I am his wife and the other woman is not.

    Why is it that a wife cannot simply take custody of her husband’s offspring born out of wedlock during their marriage? What if she wants to hold the child out as her own? Why is it that a husband can do it when the situation is reversed? Husbands come into legal custody of their wives out of wedlock children often due to the deceit of their wives. When a husband willingly takes on that responsibility to do so requires him to deliberately provide false information on the birth certificate. The right and responsibility for ones own genetic child has clearly been the intent of the law all along and that is evident by the fact that the wife of the husband can’t simply take custody of his out of wedlock child unless the woman with whom her husband conceived gives up her rights and allows his wife to adopt.

    When I mentioned the irrelevance of the surrogate to the child, I’m talking not about a woman who conceives, gives birth and relinquishes the child for a fee. I’m talking about a woman who has no genetic relationship to the child.

    • I think the questions you pose about the wife asserting that she is the mother of a child born to her husband’s mistress are excellent ones. I think it quite likely she’d get laughed out of court if she tried. But then, a man can do exactly that–assert that he is the father of a child born to his wife, even if his wife’s lover was responsible for impregnating.

      What this seems to show is that the presumption is deepy gendered. It works one way and not the other. The question then is whether this can be justified.

      I think I can explain how it came to be this way (which is not the same as justifiying it.) In general, we knew the woman who gave birth was (really? naturally?) the mother and so no one ever even considered legally rearranging that. By contrast, fatherhood is legally contructed all the time and has been for centuries. Thus, it seemed reasonable to adopt a legal rule to specify who the father would be.

  5. Oh and I think the senario you describe where the child knows the genetic history of both men but does not know which person is the progenator…its a sick, twisted horrible thing to do to a child. To leave the child not knowing who he is related to so that the two men can feel they child is equally theirs? I’m horrified at the suggestion that such mental abuse might actually occur in the world. I guess it does. Tragic.

    • I actually don’t see it in the least abusive and I’m surprised at the strenght of your reaction. No lies are told. If at some point it’s really important to the child to know, it wouldn’t be hard to find out. But at the beginning the parents can say to the child (truthfully) that it does not matter to them, they are equally parents.

      • Truthfully? Hardly! Sounds like some major self deception going on here.

        Genetics obviously mattered so much to them that they had to hide the genetic facts not only from the child but from themselves!

        If they truly considered it inconsequential to their commitment to the child, or to each other, or to the childs commitment to them, you’d think they would have rather known than not known, if only for medical reasons and for pure curiosity.

        Me thinks it mattered way too much.

        • Perhaps they are wary of the degree to which it would matter to them. Perhaps they suspect they might be influenced by the views of many of those in society who might suggest that only the genetically related person was a real father. They could be confident that if they ever needed to know for medical reasons it would be easy to find out. And until then, curiousity might be something they’d be willing to live with in order to avoid the (inevitable?) societal pressures.

          I am sympathetic to the reasoning. I may not think genetics matters, but if enough people around me think it matters, then that may make it matter, even if I don’t think it should. Thus, if my child is going to be pestered with questions about “but who is your real father?” (which I fear is likely to occur) I would like to protect her/him (and our whole family) by having there be no answer to the question.

          • Oh, now I see. So now, when nosy neighbors ask the question, the child now has the handy response that his dads mixed their sperm together. Problem solved! How dense of me.

  6. Your summary of how the law came to be seems absolutely accurate to me.
    I like looking at how the old laws are applied to new situations; I like the idea of improving what can be improved as we go along evolving.

    I believe that all men and women have the right to be told of the existence of their offspring.

    I believe that all men and women should have the right to pass on raising their own offspring before another person assumes that responsibility on their behalf.

    I believe that all men and women should have the right to decide for themselves whether or not they wish to be financially responsible for the offspring of another person.

    Its wrong for women to deceive their husband’s into believing the child is the husband’s offspring if in fact the child is the offspring of another man. I believe its wrong for a woman to conceal the birth of the other man’s offspring from him. Its wrong for a wife to trick her husband into believing that an out of wedlock child is his – its wrong for him to have to financially support the other man’s child. Its wrong for the other man not to have the opportunity to financially support his own child. Whats missing from the current law is for everyone involved to have the right to know whats really going on so that they can decide for themselves what level of responsibility they are willing to take on when a child is born.
    I absolutely think its a travisty of justice that a progenator of a child would have to fight for the right to raise and support his/her own offspring because someone else is holding their offspring out as their own. Many men are not told that a woman they dated got pregnant and gave birth and when they find out they often find themselves playing second string to the female progenator’s husband who has been raising the child. That’s just not fair. Its pretty much like kidnapping if you get right down to it. So the law does not currently work well in that respect. If the law ensured that the progenators had the right to pass on raising their own offspring, then all transfers of custody would be on the table and straightforward which would afford greater security to person’s wishing to assume responsibiity for their spouse’s or partner’s children by other people born durring the course of their relationship.
    This surogacy case seems so straightforward if the partner adopts the progenator’s child. But it becomes a complex mess when they try and pretend the child is naturally related to both of them.

    • You’ve made a number of points here and I’m just going to pick a few to respond to. Otherwise the text gets so long it’s hard to read.

      Generally under the prevailing law in the US, when a man can be paid for his sperm and a woman can be paid for her egg. This isn’t so everywhere–Canada, for example, prohibits this arrangment. (There’s a post not long ago about this.) Anyway, that’s why a number of folks here have objected, I think rightly, to calling these folks “donors.” They’re selling, not giving.

      Now when they sell the sperm/egg they are doing what you describe in paragraph 3 above–giving up whatever rights they may have. Of course, there’s disagreement about exactly what rights they have. If you think they have parental rights in whatever child might be created using the material, then the payment of money is clearly problematic. (A lot of other things become problematic, too. Perhaps most importantly, the right of a woman to elect to have an abortion without the consent of the man whose genetic material was used in conception.)

      There’s also plenty of instances where men raise non-genetically related children where there is no deceit involved. I have no problem saying it’s wrong to deceive someone else and that there should perhaps be some consequences for that wrong-doing. But what about the cases where there is no deceit, either because the woman herself didn’t know or because she was honest and the man elected to step in/step up?

      It also seems to me that you are focussing on the rights of the progenitors to the exclusion of the rights of a child. Now I have misgivings about putting all the weight on the rights of children sometimes. But it seems to me there are instances where 1) the progenitor (for whatever reason) has not been involved with child-rearing and 2) where someone not related to the child has been. If this has been the status quo for several years, then it seems to me the child might well be better served by letting him/her remain with whoever has been raising her/him (assuiming they’re doing a fine job). The child may wish to know of the existence of the progenitor and so on, but I’d think seriously about weighing the chlid’s need for continuity more heavily than whatever rights the progenitor migth claim. This could be true even if the progenitor’s absence was not willful, though I conceed these are very tough cases.

      • “But what about the cases where there is no deceit, either because the woman herself didn’t know or because she was honest and the man elected to step in/step up? ”

        OK well lets agree that black-market adoption and child trafficking is illegal and the state does not want people to take and raise other people’s offspring without the knowledge and express consent of the progenitor AND the court. In fact, if a woman knows the name but not the whereabouts of the men she may have conceived her offspring with, the state will hunt them all down, free of charge no less, to figure out which one of them is the child’s progenitor BEFORE naming any of them on the birth certificate. Its really not the woman’s place to pick and choose the answer that suits her and her husband’s needs best.

        A woman who names her husband as progenitor knowing there is even a remote possibility that the progenitor is actually someone else – is not innocent. If in fact that child turns out to be the offspring of another man and her husband knowingly holds the child out as his own and allows himself to be named on the child’s birth certificate, then they in my mind are both guilty of kidnapping because they have the other man’s child without his consent.

        What is absolutely awful is that the the law would support such deceitful actions by preventing the other man from raising his own flesh and blood once he finds out and seeks custody. And the reason from preventing him from raising his own child would be because the female progenator’s husband pretended to be the child was his own offspring for so long that it would be disruptive to the child to expose the lie and end the relationship at that point?

        So in response to the idea that there are instances where the woman “did not know” I say phooey, as long as she did not know for sure who the progenitor was, it was not her place to pick the one she liked best. She’s playing God with the lives of her child and the person who she conceived her child with as well as with the lives of that person’s extended family. As far as there being men who raise other men’s offspring without deceit, I say yes there are plenty of fine step fathers and plenty of fine legal guardians who have obtained custody of another man’s offspring with the full knowledge and consent of the other man.

        In the subject case, the child is lacking information on his female progenitor – which sucks for him. But the woman presumably signed a contract waiving her rights to her child – allowing someone like the partner of the male progenitor to adopt the child. He should do that. They should be worried that the bond between child and progenitor will be stronger than the child’s bond with the non-progenitor, it will be but that’s the kind of family they’re choosing to “build” they better suck it up and deal with it, cards on the table.

  7. I would qualify that it is *USUALLY* wrong. There can be all sorts of extenuating factors that can complicate the situation.

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